HIGH COURT OF JUDICATURE AT ALLAHABAD This appeal under Section 18 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (hereinafter referred to as "the Act") has been preferred by the appellants Shashi Kant Chaurasiya and Shrikant Chaurasiya, sons of Kanhaiya Chaurasiya with the prayer to set aside the order dated 09.06.2010 passed by the Special Judge (Gangsters Act), Varanasi in Misc. Application No.42 of 2009 (State Vs. Kanahiya Chaurasia and others), whereby the learned Special Judge (Gangsters Act) has rejected the application filed by the appellants under Section 16(2) of the Act for releasing the house and shop in question and affirmed the order dated 22.10.2009 passed by the District Magistrate, Ghazipur under Section 14(1) of the Act, by which the District Magistrate, Ghazipur refused to release the property of the appellants consisting a shop of general store and a residential house situated at village Gauspur, P.S. Mohammadabad, District Ghazipur.
Present appeal has been preferred by the appellants on the grounds that an FIR as case crime no.70 of 2008, under Section 3(1) of the Act was registered wrongly against the father of the appellants at P.S. Mohammadabad, District Ghazipur as the gang chart annexed with the said FIR does not constitute offence under Gangsters Act, even proceeding under Section 14(1) of the Act was started and the property has been attached against the provisions of the law; that there is no evidence at all and the prosecution has failed to prove that the properties which were attached by the District Magistrate, Ghazipur in proceeding under Section 14(1) of the Gangsters Act was result of outcome of income of gangster activity and without any basis the order of attachment has been passed and the leaned Special Judge (Gangsters Act), Varanasi has also refused to release the property without recording specific finding that it has been obtained by involvement under Gangsters Act; that the learned Special Judge (Gangsters Act), Varanasi has not made any inquiry into the matter nor the prosecution adduced any evidence to this effect that the property was earned by the father of the appellants after being involved under Gangsters Act; that the order of attachment has been passed mechanically on the basis of report submitted by the police, but the District Magistrate and the Special Judge (Gangsters Act), Varanasi have not considered the evidence adduced by the appellants and mechanically passed the order impugned and that the findings recorded by the trial court are against the evidence on record.
The brief facts of the case are that an FIR as case crime no.70 of 2008 was lodged against Kanhaiya Chaurasia, the father of the appellants under Section 3(1) of the Act at P.S. Mohammadabad, District Ghazipur. In the gang chart four separate offences were shown against him i.e. case crime no.241 of 1999, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur; case crime no.92 of 2000, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur; case crime no.708 of 2007, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur and case crime no.60 of 2008, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur. On the basis of lodging of the said FIR against Kanhaiya Chaurasia, the father of the appellants under the Act, a report of P.S. Kotwali Mohammadabad was submitted on 07.06.2008 with the prayer that the property in question earned illegally by Kanhaiya Chaurasiya may be attached under Section 14(1) of the Act. In the said report of P.S. concerned it has been stated that the said Kanhaiya Chaurasiya entered in the world of crimes in 1988 against whom a case crime no.269 of 1988, under Section 60 of the Excise Act was registered. Earlier he was very poor having a Khaprail house in dilapidated condition in village Gauspur and was doing business of a little Parchoon shop and anyhow was earning his and his family members livelihood, but thereafter as many as 20 criminal cases were registered against him, in which mainly case crime no.63 of 1995, under Section 8/20 of the NDPS Act, case crime no.161 of 1996, under Section 8/20 of the NDPS Act, case crime no.241 of 1999, under Section 8/20 of the NDPS Act, case crime no.92 of 2000, under Section 8/20 of the NDPS Act, case crime no. nil of 2006, under Section 41/411 IPC, P.S. Mohammadabad, District Ghazipur and case crime no.65 of 2006, under Section 420/406 IPC at P.S. Peelkhana, District Kanpur were registered and case crime no.60 of 2008, under Section 8/20 of the NDPS Act was also recently registered against him. After investigation in the said matters, charge sheets have already been submitted and thereafter, after sanction of District Magistrate, case crime no.70 of 2008, under Section 3(1) of the Act was registered against him. It has also been mentioned in the said report that after 1988 he earned a lot having no legal source of income but has earned by sale of narcotic drugs.
In the said report it has also been mentioned that a truck no. UP61B 2999 is registered in the name of his son Shashi Kant Chaurasia (appellant no.1) and truck no. UP61E 7309 is registered in the name of his second son Shrikant Chaurasiya and he has also a motorcycle Hero Honda bearing no. UP61E 0820 and there are also a two storied residential house having value of Rs.7-9 lakhs and a general store having value of Rs.2 lakhs and as the said properties were earned illegally, the same may be attached under Section 14(1) of the Act. The sad report was forwarded with recommendation by Additional S.P. (RA) to S.P. Ghazipur, who in his turn recommended the same to District Magistrate, Ghazipur on 09.06.2008.
The District Magistrate, Ghazipur on the basis of said report passed the order dated 02.09.2008 directing to attach the said properties belonging to Kanhaiya Chaurasiya and appointed Tehsildar, Mohammadabad for the said purpose. It is not out of place to mention here that the District Magistrate in his order dated 02.09.2008 has mentioned in moveable properties two trucks bearing no. UP61B2999 and UP61E7308 and a motorcycle bearing no. UP61E0820 besides the immoveable properties a general store shop and a residential house at village Gauspur, P.S. Mohammadabad. The said three vehicles could not be traced and hence could not be attached and only the general store shop and residential house were attached.
After the order of attachment of the said properties including the residential house and general store shop, the said Kanhaiya Chaurasiya and his son Shashi Kant Chaurasiya filed separate objections on 19.09.2008 and an additional objection was also filed by Kanhaiya Chaurasiya, in which it has been stated that the house in question was inherited by Kanhaiya Chaurasiya and he has no other house. It was also stated that initially the said house was Kachcha, but subsequently they have got the house reconstructed and made in two stories. It was also mentioned that Kanhaiya Chaurasiya was doing business of betel in a Gumati from his childhood and also made a Kothari having tinshed just behind the said Gumati and was living in the said Gumati from before Zamindari Abolition for which a case is also pending in the civil court. After partition among them, his elder son Shashi Kant @ Munna (appellant no.1) started living in two rooms of the ground floor of the said ancestral house and doing business of a general store in a room in front of the said house, but due to order of the court, the articles placed in the shop and in the verandah have been attached. The said articles were earned by the said Shashi Kant @ Munna. It has also been stated that his second son Shrikant (appellant no.2) has purchased a vehicle after obtaining financial aid from Varanasi Auto Sales Limited Tata Motors. It has also been stated that false cases have been got registered against Kanhaiya Chaurasiya and illegally the offence under the Gangsters Act was also imposed. Similar contentions were also made by Shashi Kant Chaurasiya (appellant no.1) and he has stated that his brother Shrikant Chaurasiya is doing job as SI in Ahmadabad and the younger brother Rishikesh is student of P.G. College and all the three brothers are living separately after partition in the said ancestral house. It has also been stated that the said house is ancestral and it was only renovated by him and his brothers and Kanhaiya Chaurasiya has no concern with the same and for his livelihood he is also doing business of Kerana shop (general store) having licence from Zila Parishad. In the additional objection filed by Kanhaiya Chaurasiya it has been stated that truck no. UP61B 2999 was purchased by Shashi Kant, which was sold to one Sunil Kumar Yadav and his name has also been transferred by ARTO. The said truck was sold by Shashi Kant for Rs.2,70,000/- and by the said money another truck no.UP61F 7309 was purchased after taking loan from Tata Motors. His son Shashi Kant Chaurasiya has also purchased a motorcycle bearing no. UP 61E 0820 for the purposes of his business. In the said objections filed by Kanhaiya Chaurasiya and Shashi Kant Chaurasiya, it was prayed that the properties may be released.
After hearing the appellants and his father, the learned District Magistrate, Ghazipur vide order dated 22.10.2009 has rejected the objections filed by the appellants and their father Kanhaiya Chaurasiya and affirmed the order of attachment dated 02.09.2008 passed earlier finding that the attached properties were acquired by Kanhaiya Chaurasiya as a result of commission of offence under the Act. The learned District Magistrate at the same time referred the matter to Special Judge (Gangsters Act), Varanasi while exercising the power under Section 16(1) of the Act. The appellants and Kanhaiya Chaurasiya also filed applications under Section 16(1) of the Act before the Special Judge (Gangsters Act), Varanasi for releasing the properties in question.
The appellants adducted the oral evidence of Kanhaiya Chaurasiya, Anirudh Singh Yadav, Ramjee Singh Yadav, Shashi Kant Chaurasiya (appellant no.1) and Shrikant Chaurasiya (appellant no.2). They also submitted copy of plaint in original suit no.46 of 1987 (Pranpati Vs. Kanahiya), which was instituted in the court of Munsif, Mohammadabad, Ghazipur. Receipts of goods purchased for general store, copy of the electricity bills and registration papers of having franchise of Indian Agro Marketing Cooperative Pvt. Ltd., registration papers of the aforesaid vehicles, licence of Zila Parishad, licence of selling edible oil, masala, galla etc. and several receipts for purchasing and selling of goods of Kerana shop were also filed.
On behalf of the prosecution no evidence was adduced.
The learned Special Judge (Gangsters Act), Varanasi after considering the entire materials including the application moved by the appellants under Sections 16(1) of the Act, report of P.S. concerned and the evidence adduced by the appellants has rejected the application filed by the appellants and refused to release the house of the appellants and general store vide order impugned dated 09.06.2010.
Aggrieved against the said order the present appeal has been filed.
Heard Shri Ravindra Nath Rai, learned counsel for the appellants and learned AGA for the State and perused the record.
Learned counsel for the appellants has contended that the house in question was an ancestral property of the appellants and the same was an old house, which was only renovated and in the said house at the ground floor, there is a Kerana shop being run by the appellant no.1, but the learned District Magistrate has wrongly directed for attachment of the said house and the Kerana shop without any basis or reason to believe that the said house and Kerana shop were acquired by a gangster as a result of commission of an offence under the Act. It is also contended that the learned District Magistrate has also illegally rejected the application filed by the appellants and their father Kanhaiya Chaurasiya for releasing of the said property and the learned Special Judge (Gangsters Act) has also illegally rejected the release application filed by the appellants and wrongly accepted the reference made by the District Magistrate without properly considering the entire materials adduced on behalf of the appellants to the effect that the said house was the ancestral house, which was only renovated and the Kerana shop was being run by the appellant no.1 and the same were not acquired by Kanhaiya Chaurasiya being gangster as a result of commission of an offence triable under the Act. It is further contended that in all the four cases under NDPS Act as shown in the gang chart the said Kanhaiya Chaurasiya, father of the appellants has been acquitted and the said cases were found to be falsely imposed against him. It is also submitted that in the FIR lodged under Section 3(1) of the Act, there is also a mention of another person Shriram @ Singh along with Kanhaiya Chaurasiya, but in gang chart three separate cases are shown against the said Shriram @ Singh and hence there is no any case shown to be common against both the persons, as such, it cannot be said that Kanhaiya Chaurasiya formed a gang or was a gangster. It is also submitted that the four cases as shown in the gang chart against Kanhaiya Chaurasia were relating to NDPS Act and the recoveries were of only Ganza of petty quantity and in all the said four cases the said Kanhaiya Chaurasiya has been acquitted, but the learned District Magistrate has illegally attached the house and Kerana shop in question without there being any material to believe that the said properties were acquired by Kanhaiya Chaurasiya as a result of commission of an offence under the Act and the learned Special Judge (Gangsters Act) has also wrongly rejected the application moved by the appellants for release of the said properties even by giving finding the said house to be ancestral house. It is also submitted that there was no evidence adduced by the prosecution either oral or documentary to prove that the house in question was constructed by illegal means as a result of commission of an offence under the Act, whereas there is sufficient evidence adduced oral as well as documentary on behalf of the appellants to prove that the house in question was an ancestral property and the same was only renovated. It is also submitted that according to Section 14(1) of the Act, the District Magistrate may make an order for attachment only on the basis that he has reason to believe that the said property was acquired by a gangster as a result of commission of an offence triable under this Act, but the learned District Magistrate without recording his satisfaction to the said effect has wrongly directed to attach the property in question and also illegally dismissed the application filed by the appellants and their father Kanhaiya Chaurasiya to release the same and the learned Special Judge (Gangsters Act) has also acted illegally in not releasing the property in favour of the appellants.
Learned counsel for the appellants placed reliance upon the following verdicts given by this Court :-
(1)Smt. Maina Devi Vs. State of U.P. reported in [2013(9) ADJ 542];
(2)Smt. Afzal Begum Vs. State of U.P. reported in [2012(76) ACC 164];
(3)Smt. Shant Devi Vs. State of U.P. reported in 2007(2) ALJ 483; and (4)Smt. Kahkashan Parveen and another Vs. State of U.P. reported in 1999(39)ACC 719 (DB).
On the other hand, learned AGA has submitted that the District Magistrate, Ghazipur has not committed any error in attaching the house and Kerana shop which were acquired by the gangster Kanhaiya Chaurasiya and he has also not committed any error in rejecting the application filed by the appellants and the said Kanhaiya Chaurasiya under Section 15 of the Act to release the said property and the learned Special Judge (Gangsters Act), Varanasi has also not committed any error in rejecting the application moved by the appellants under Section 16(1) of the Act to release the said property as the said Kanhaiya Chaurasiya was involved in several cases and has acquired the said properties by illegal means on the basis of his involvement in such cases and the FIR under Section 3(1) of the Act has also been registered against him at P.S. Mohammadabad, District Ghazipur. It is further submitted that against the said Kanhaiya Chaurasiya as many as 22 criminal cases were pending, but in the gang chart only four cases are shown and he had acquired the money by illegal means and constructed the house and Kerana shop. It is also submitted that the case under Gangster Act is still pending, hence the learned District Magistrate has rightly ordered to attach the property in question and rejected the release application and the learned trial court has also rightly rejected the release application filed by the appellants and affirmed the reference made by the District Magistrate. He placed reliance on a verdict given by this Court in Ram Kumar Dubey Vs. State of Uttar Pradesh, 2005 LawSuit (All) 233.
I have considered the said submissions made by the rival parties' counsel and perused the rulings cited by them and also considered the facts and circumstances of the case including the evidence adduced in the matter along with the orders impugned passed by the courts below.
For resolving the issues involved in the present case the provisions of Sections 14, 15, 16 and 17 of the Act are relevant to be considered and for ready reference the said provisions are quoted as under:-
14. Attachment of property .- (1) If the District Magistrate has reason to believe that any property, whether moveable or immovable, in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under this Act, he may order attachment of such property whether or not cognizance of such offence has been taken by any Court.
(2) The provisions of the Code shall mutatis mutandis apply to every such attachment.
(3) Notwithstanding the provisions of the Code the District Magistrate may appoint an Administrator of any property attached under sub-section (1) and the Administrator shall have all the powers to administer such property in the best interest thereof.
(4) The District Magistrate may provide police help to the Administrator for proper and effective administration of such property.
15. Release of property .- (1) Where any property is attached under Section 14, the claimant thereof may, within three months from the date of knowledge of such attachment, make a representation to the District Magistrate showing the circumstances in and the sources by which such property was acquired by him.
(2) If the District Magistrate is satisfied about the genuineness of the claim made under sub-section (1) he shall forthwith release the property from attachment and thereupon such property shall be made over to the claimant.
16. Inquiry into the character of acquisition of property by court .- (1) Where no representation is made within the period specified in sub-section (1) of Section 15 or the District Magistrate does not release the property under sub-section (2) of Section 15 he shall refer the matter with his report to the Court having jurisdiction to try an offence under this Act.
(2) Where the District Magistrate has refused to attach any property under sub-section (1) of Section 14 or has ordered for release of any property under sub-section (2) of Section 15, the State Government or any person aggrieved by such refusal or release may make an application to the Court referred to in sub-section (1) for inquiry as to whether the property was acquired by or as a result of the commission of an offence triable under this Act. Such court may, if it considers necessary or expedient in the interest of justice so to do, order attachment of such property.
(3) (a) On receipt of the reference under sub-section (1) or an application under sub-section (2), the Court shall fix a date for inquiry and give notices thereof to the person making the application under sub-section (2) or, as the case may be, to the person making the representation under Section 15 and to the State Government, and also to any other person whose interest appears to be involved in the case.
(b) On the date so fixed or on any subsequent date to which the inquiry may be adjourned, the Court shall hear the parties, receive evidence produced by them, take such further evidence as it considers necessary, decide whether the property was acquired by a gangster as a result of the commission of an offence triable under this Act and shall pass such order under Section 17 as may be just and necessary in the circumstances of the case.
(4) For the purpose of inquiry under sub-section (3), the Court shall have the power of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Act No. V of 1908), in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commission for examination of witnesses or documents;
(f) dismissing a reference for default or deciding it ex parte;
(g) setting aside an order of dismissal for default or ex parte decision.
(5) In any proceedings under this section, the burden of proving that the property in question or any part thereof was not acquired by a gangster as a result of the commission of any offence triable under this Act, shall be on the person claiming the property, anything to the contrary contained in the Indian Evidence Act, 1872 (Act No. 1 of 1872), notwithstanding.
17. Order after inquiry .- If upon such inquiry the Court finds that the property was not acquired by a gangster as a result of the commission of any offence triable under this Act it shall order for release of the property of the person from whose possession it was attached. In any other case the Court may make such order as it thinks fit for the disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof, or otherwise.
Now coming to the rulings as cited by the appellants' counsel, in the first ruling Smt. Maina Devi Vs. State of U.P. (supra), this Court has held that the District Magistrate while exercising the power to attach the moveable or immoveable property under Section 14(1) of the Act in possession of any person acquired by a gangster as a result of commission of an offence triable under the Act must have reason to believe that the said property was acquired by the gangster as a result of commission of an offence triable under the Act.
The second ruling as cited is Smt. Afzal Begum Vs. State of U.P. (supra), in which the verdict given by the Division Bench of this Court in Smt. Kahkashan Parveen and another Vs. State of U.P. (supra) has also been considered and discussed. In the said Division Bench verdict Kahkashan Parveen Vs. State of U.P. (supra), this Court in "paragraph 7" has held as under:-
"An analysis of the different words used in Section 14 suggests that it is within the authority of the District Magistrate upon his satisfaction that any property in possession of any person has been acquired by a gangster as a result of the commission of an offence triable under the Act, to direct attachment of the property notwithstanding the question of absence of cognizance by any Court. The provision requires that there must be a reason to believe on the part of the District Magistrate that the conditions for an action under section 14 of the Act did exist and the conditions are that certain property in possession of any person must have been acquired by a gangster and that too by commission of an offence under the Act. Thus, the satisfaction portion should not only indicate that the property sought to be attached was acquired by a gangster but it should also indicate that such acquisition has been made by commission of an offence under the Act. This satisfaction of the District Magistrate is not open to be challenged in any appeal. Only a representation is provided for before the District Magistrate himself under Section 15 and in case he refuses to release the property on such representation, he is to make a reference to the court having jurisdiction to try an offence under the Act. Thus, so far as the District Magistrate is concerned, the satisfaction must not be arbitrary and must be based on the legal conditions indicated in section 14 of the Act."
In the verdict given in Smt. Afzal Begum Vs. State of U.P. (supra) in paragraph 13 it has been observed that it is now well settled that the property being made subject matter of an attachment under section 14 of the Act must have been acquired by a gangster and that too by commission of an offence triable under the Act. The District Magistrate has to record his satisfaction on this point. The satisfaction of the District Magistrate is not open to challenge in any appeal. Only a representation is provided for before the District Magistrate himself under section 15 of the Act and in case he refuses to release the property on such representation, he is to make a reference to the court having jurisdiction to try an offence under the Act. The Court, while dealing with the reference made under sub-section (2) of Section 15 of the Act has to see whether the property was acquired by a gangster as a result of commission of an offence triable under the Act and has to enter into the question and record his own finding on the basis of the inquiry held by him under section 16 of the Act. If the court comes to the conclusion that the property was not acquired by the gangster as a result of commission of an offence triable under the Act, the court shall order for release of the property in favour of the person from whose possession it was attached. If the conclusion of the court is otherwise, it may pass such order as it thinks fit for the disposal of the property by attachment, confiscation or delivery to any person entitled to the possession thereof or otherwise. This power has been conferred on the Court under section 17 of the Act. In other words, the attachment made under section 14 of the Act can be upset by the court after an inquiry under section 16 of the Act and in that situation the court has power to release the attached property in favour of the person from whose possession the property was attached.
In the next verdict given in Smt. Shanti Devi Vs. State of U.P. (supra), this Court has held that in order to proceed under Section 14 of the Act, there must be materials for objective determination of the District Magistrate that the person is either a member, leader or organizer of a gang and has acquired any property in commission of any offence under the Act. There must be a nexus between his criminal acts as enumerated therein and the property acquired by him. His mere involvement in any offence is not sufficient to attach his property. In other words what is necessary to find is whether, his acquisition of property was a result of commission of any offence enumerated in the Act being a member, leader or organizer of a gang. It has also been held that the initial burden is on prosecution to prove that the concerned person was gangster and had acquired property on account of his criminal activities.
A reading of Section 14(1) of the Act shows that the order of the District Magistrate attaching one's property should be based on the reasons and not arbitrary. The expression "reason to believe" appearing therein has some intent and purpose. It puts fatter in the arbitrary exercise of power of attachment to deny a person of his right to any property. What law requires is that there must be reason to believe that the property sought to be attached has been acquired by a 'gangster' as a result of commission of any offence under the Act. The expression "reason to believe" is also defined in Section 26 of the Indian Penal Code. According to said definition a person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise. "Reason to believe" is not the same thing as "suspicion" or "doubt" and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind.
The law cited by the learned AGA given in Ram Kumar Dubey Vs. State of U.P. (supra) and also relied upon by the learned court below is not applicable to the facts and circumstances of the present case as in the present matter the reference made by the District Magistrate and the application to release the property moved before the learned Special Judge (Gangsters Act), Varanasi by the appellants has been finally disposed of by the learned trial court but in the case of Ram Kumar Dubey Vs. State of U.P. (supra), the reference made by the District Magistrate to Special Judge (Gangsters Act) under Section 16 of the Act was pending and the inquiry was going on by the Special Judge (Gangsters Act), but in the meantime on further representations made through different applications by the appellants to release the property, it was released by the court below through an interim order, which was the subject matter of challenge before this Court in criminal appeal, hence this Court has held that the disposal of such application to release the property, objection and reference under Section 16 of the Act by the court is possible only after the trial of the case under the Act is over. Such interim arrangement as has been done in that case by the court below by passing the impugned order is obviously not contemplated under law and the whole order was without jurisdiction. The said verdict given in Ram Kumar Dubey Vs. State of U.P. (supra) was given in appeal filed against the interim order passed by the trial court during the pendency of the reference made by the District Magistrate under Section 16 of the Act was pending and inquiry was going on.
Now coming to the facts and circumstances of the present case obviously in the FIR registered as case crime no.70 of 2008, under Section 3(1) of the Act against Kanhaiya Chaurasiya, father of the appellants and one Shriram @ Singh, four cases are shown against said Kanhaiya Chaurasiya, which are under NDPS Act and three cases are shown against the said Shriram @ Singh and none of the said cases are common in which both were implicated. There is nothing on record to show that the said Kanhaiya Chaurasiya has formed any gang along with said Shriram @ Singh or with any other person. In the gang chart four cases are shown. The first one is case crime no.241 of 1999, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur. In the said case, the said Kanhaiya Chaurasiya was alleged to have been apprehended by the police and from his possession 600 grams Ganza was alleged to have been recovered. The said case was tried by the Special Judicial Magistrate, Ghazipur as criminal case no.195 of 2014 and the said Kanhaiya Chaurasiya, the father of the appellants has been acquitted vide judgment and order dated 23.03.2014.
The second case is shown as case crime no.92 of 2000, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur. In the said case, the said Kanhaiya Chaurasiya was alleged to have been apprehended by the police and from his possession 500 grams Ganza was alleged to have been recovered. The said case was tried by the Special Judicial Magistrate, Ghazipur as criminal case no.65 of 2014 and the said Kanhaiya Chaurasiya has been acquitted vide judgment and order dated 23.03.2014.
The third case is shown as case crime no.60 of 2008, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur. In the said case, the said Kanhaiya Chaurasiya was alleged to have been apprehended by the police and from his possession 2 kg. and 150 grams Ganza was alleged to have been recovered. The said case was tried by the Additional Sessions Judge (FTC), Ghazipur as criminal case no.19 of 2008 and the said Kanhaiya Chaurasiya has been acquitted vide judgment and order dated 21.05.2009.
The fourth and last case as shown is case crime no.708 of 2007, under Section 8/20 of the NDPS Act, P.S. Mohammadabad, District Ghazipur. In the said case, the said Kanhaiya Chaurasiya was alleged to have been apprehended by the police and from his possession 96 Puria Ganza (290 grams) were alleged to have been recovered. The said case was tried by the Additional Chief Judicial Magistrate, Ghazipur as criminal case no.193 of 2007 and the said Kanhaiya Chaurasiya has been acquitted vide judgment and order dated 06.09.2008.
Accordingly, in all the said four cases as shown in the gang chart, the said Kanhaiya Chaurasiya, father of the appellants has been acquitted as prosecution has failed to prove its cases against him.
On behalf of the State, learned AGA has pointed out the criminal history of 22 cases against Kanhaiya Chaurasiya, father of the appellants. All the said 22 cases have been explained in paragraph 3 of the rejoinder affidavit and most of the cases were under NDPS Act or under Section 110 Cr.P.C. or under Excise Act or Goondas Act. In the police report submitted for attaching the property under Section 14 of the Act, the police has stated that against Kanhaiya Chaurasiya as many as 20 cases were registered at different places, in which mainly the cases were under NDPS Act and one case crime no. nil of 2006 was under Section 41/411 IPC, P.S. Mohamadabad and one case crime no.65 of 2006 was under Section 420/406 IPC, P.S. Peelkhana, District Kanpur. The said cases have also properly been explained by the appellants that in the said cases under NDPS Act, he has been acquitted, in case under Section 41/411 IPC and under Sections 420/ 406 IPC, the said Kanhaiya Chaurasiya was found in possession of 95 tins Utsav Vanaspati Ghee. It has been stated that earlier FIR was lodged against driver of truck, who was carrying Utsav Vanaspati Ghee from Kanpur to Varanasi and the owner of the truck had sold the same in Usufpur, Mohammadabad, Ghazipur and it was stated that Kanhaiya Chaurasiya had also purchased 95 tins of Utsav Vanaspati Ghee from one Ganesh Prasad, which was said to be relating to theft. It is submitted that the said case cannot be said to be the basis for the Gangsters Act nor it was shown in the gang chart.
In objection and release application filed by the appellants and Kanhaiya Chaurasiya, it has properly been stated and explained that the house in question was ancestral house, which was only renovated after partition between the appellants and their father Kanhaiya Chaurasiya. In the said house, three brothers including the appellants were residing in different portion and at the ground floor in two rooms, the appellant no.1 was residing and infront of the said house at the ground floor, he was running a Kerana shop (general store). On behalf of the appellants several documentary evidence including the licence from Zila Panchayat for running Kerana shop, registration papers of having Franchisee of Indian Marketing Cooperative Pvt. Ltd and licence for selling fertilizers, several receipts of goods purchased for general store, copy of electricity bills and other documents were produced apart from the oral evidence given by the appellants, Anirudh Singh Yadav, Ramjee Singh Yadav and Kanhaiya Chaurasiya and they have fully proved that the house in question was ancestral house and it was only renovated and subsequently reconstructed in two stories, in which three brothers including the appellants were residing and at the ground floor, appellant no.1 was doing business of Kerana shop and also selling fertilizers, edible oil and other Parchoon materials etc. It was also stated that from childhood, Kanhaiya Chaurasiya was residing in a tinshed room after constructing the same behind his betal shop running in a Gumati and had earned money from the said betel shop. Regarding the said three vehicles it was properly explained to acquire them after taking loan from Tata Motors. There is also evidence to prove the other earnings which were disclosed as there was an Insurance Cover collected in 1998 after the death of the wife of Kanhaiya Chaurasiya and earning from his elder son from provisional shop, which was opened in 1996.
The learned Special Judge (Gangsters Act) has also held in his order impugned dated 09.06.2010 that the house initially was an ancestral and the construction was raised subsequently. The trial court has also held that from the side of State no evidence has been adduced despite giving them ample opportunity and nothing has been filed, but the trial court has wrongly held that receiving of Insurance money stated to have been received in the year 1998 and the provisional store is said to have been opened in the year 1996, do not support the claim of the said Kanhaiya Chaurasiya. The learned trial court has also wrongly relied upon the ruling given in case of Ram Kumar Dubey Vs. State of U.P. (supra), whereas the said ruling is not applicable in the facts and circumstances of the present case. The learned trial court has wrongly held that the appellants could not establish that from which source of income they purchased the house and from which source of income they raised the construction of house, whereas there is sufficient evidence to prove that the said house was ancestral house and was only renovated or reconstructed subsequently when the provisional store was running by the appellant no.1 and also Insurance Cover was collected by him after death of his mother in the year 1998. Moreover, in all the four cases as shown in the gang chart, the said Kanhaiya Chaurasiya, father of the appellants has been acquitted as the prosecution has failed to prove the said cases against him.
In view of what has been discussed above, there is ample evidence on record to show that the house in question was ancestral property which was only renovated or reconstructed by the appellants from the income as obtained by them after death of their mother under insurance policy and from running the provisional store and there is nothing on record to show that the said house was purchased or acquired from illegal means by the alleged gangster Kanhaiya Chaurasiya as a result of commission of an offence triable under this Act. The learned District Magistrate has also not considered the matter properly and there was no basis to believe that the said house and Kerana shop (general store) were acquired by a gangster as a result of commission of an offence triable under the Act. The said satisfaction has not been recorded by the District Magistrate, hence the order of attachment passed by him is arbitrary and illegal. The learned District Magistrate has also wrongly rejected the application for release moved by the appellants for the said property and the trial court has also not considered the matter properly and inspite of the fact that the said house was ancestral one as held by himself, he has wrongly accepted the reference made by the District Magistrate and rejected the release application moved by the appellants.
In view of the aforesaid consideration, the order passed by the District Magistrate, Ghazipur under Section 14(1) of the Gangsters Act attaching the house and the Kerana shop (genral store) of the appellants vide order dated 02.09.2008 and the order dated 22.10.2009 passed by him rejecting the release application filed by the appellants and their father Kanhaiya Chaurasiya and the order dated 09.06.2010 passed by Special Judge (Gangsters Act) dismissing the misc. application no.42 of 2009 are illegal and the same are hereby set aside and the District Magistrate, Ghazipur is hereby directed to release the house and the Kerana shop (general store) in question situated in village Gauspur, P.S. Mohammadabad, District Ghazipur in favour of the appellants forthwith.
Accordingly this appeal is allowed.